Fabiola Letelier, Adil Brkovic and Alicia Ramirez wrote
this memorandum, which presents a global model for reparations
for victims of grave human rights violations. It proposes
a legal mechanism for implementing reparations programs
for all victims of human rights violations in Chile.
June 27, 2003
COMPENSATION POLICY FOR GRAVE
HUMAN RIGHTS VIOLATIONS
State's obligation to compensate victims of grave human rights
violations is founded on the principle that all States must
respect and enforce respect for human rights. This obligation
encompasses the prevention of violations, and if violations
should occur, States have the obligation to investigate and
take appropriate measures against individuals responsible
for these crimes, as well as provide the direct victims or
their close relatives judicial recourse and reparations.
Our country has subscribed and ratified various international
instruments related to human rights that establish the right
of victims to obtain reparations. However, no steps have been
taken to bring national legislation in compliance with these
agreements. This situation has meant that in judicial practice
the State's extracontractual responsibility for human rights
violations is treated in compensatory considerations as a
mere proprietary issue regulated by regulations governing
private rights with no implications for the public regulatory
framework, to which it pertains by essence.
application of norms on extracontractual responsibility set
forth in the Civil Code on compensatory intentions resulting
from or based upon a violation of human rights, result in
a restriction of the victim's rights to demand compensation.
Such restriction is based upon statutes of limitation, even
though neither the Constitution nor the State Administration
Fundamentals Law [Ley Organica General de Bases de la Administracion
del Estado] establishes any time period for statutes of limitation
in relation to the compensatory actions they set forth.
is important to note that over the course of nearly ten years
of litigation, a good number of judges and Courts of Appeals
have accepted the doctrine that State responsibility in human
rights is not subject to statutes of limitation.
in two recent resolutions, in response to a petition from
the State Defense Council, the Civil Chamber of the Supreme
Court ruled that compensation in such matters is affected
by statues of limitations, effectively precluding judicial
avenues from implementation of the reparations victims need.
need to restructure the regulatory framework in this respect
is also justified in the obligation the Chilean State assumed
in light of international treaties ratified by our country,
to endow victims with an effective and rapid recourse to enforce
their rights before international bodies. At present, our
judicial framework does not contemplate such actions. Within
this framework, we propose implementation both substantive
and procedural in nature, that facilitate effective reparations,
in keeping with principles drafted by United Nations Special
Rapporteur for the issue of Reparations, Mr. Theo Van Boven,
that lawmakers should take into account.
PRINCIPLES AND RECOMMENDATIONS CONCERNING THE RIGHTS OF VICTIMS
OF GRAVE HUMAN RIGHTS VIOLATIONS AND THE HUMANITARIAN RIGHT
TO OBTAIN REPARATIONS
1. Reparations may be claimed individually, and when appropriate
collectively, by the direct victims, their next of kin, or
the persons who were responsible for the victim, or persons
or groups (such as professional societies) associated with
2. International law sets forth that States have the duty
to adopt special measures, when circumstances so ordain, to
permit authorization of rapid and fully effective reparations.
Reparations should offer solutions for justice, eliminating
or repairing the consequences of the damage suffered. They
must also act to impede new violations in the future through
prevention and dissuasion. Reparations must be provided in
proportion to the severity of the violations of the damage
suffered, and shall comprise restitution, compensation, rehabilitation,
satisfaction and guarantees that the violations will not be
3. Every State must inform the national and international
public through private and official media of the procedures
for claiming reparations.
4. Statutes of limitation shall be inapplicable during the
periods in which recourses are ineffectual due to the violation
of human rights or humanitarian law. Civil claimants of reparations
resulting from serious human rights violations or humanitarian
law shall not be subject to statutes of limitation.
5. Every State must quickly make available to competent authority
all information in its possession that may be useful for reviewing
6. Decisions regarding reparations of victims of human rights
violations or humanitarian law shall be adopted in a diligent
and rapid manner.
Reparations shall consist of one or several of the forms outlined
below. The list is not exhaustive.
1. Restitution shall be aimed at restoring the situation existent
prior to the violation of human rights or humanitarian law.
It demands, among other things, reestablishment of freedom,
family life, citizenship rights, work, property, and the return
to the country of past residence.
2. Compensation shall be accorded for all damages resulting
from a violation of human rights or humanitarian law, and
that may be assessed in terms of economics. Compensation shall
be granted for physical or mental damage, including pain,
suffering and emotional anguish; loss of opportunities including
educational opportunities; material damages and loss of income,
including job loss, damage to reputation or dignity; expenses
incurred in obtaining legal or expert assistance.
3. Rehabilitation shall be provided, consisting of medical
and psychological attention as well as legal and social services.
4. Satisfaction and guarantees that the violation will not
be repeated shall be provided. These shall include, when applicable,
the cessation of existing violations; verification of the
events and broad publicity in the media of the truth regarding
what happened; an official statement or judicial resolution
that restores dignity, reputation and rights of the victims
and persons associated with him/her; a public apology that
includes acknowledgement of responsibility; application of
judicial or administrative sanctions of the persons responsible
for the violations; commemoration and tributes to the victims;
incorporation of human rights curriculum in teaching manuals,
and incorporation in history texts of an accurate version
of the violations of humanitarian and human rights; prevention
of future violations of human rights, by the following means:
ensuring that civil government authorities have effective
control over the armed forces and police; limiting the jurisdiction
of military tribunals to exclusively military crimes committed
by military personnel; strengthening the independence of the
judiciary; protecting the legal profession, its members and
human rights defenders; prioritizing the improvement of human
rights education in all sectors of society, and particularly
with the armed forces and police, as well as law enforcement
III. LEGISLATIVE PROPOSAL
The following modifications are proposed to Law 18.575, the
State Administration Fundamentals Law [Organica de Bases Generales
de la Administracion del Estado].
1. The following clauses shall be added to article 4.
Should the action or omission constitute a grave violation
of human rights, the civil responsibility of the State shall
not be subject to statutes of limitation and judicial investigation
shall be the procedure applicable in this case.
The State Defense Council may mediate in the trial.
Appeals filed after the Courts of Appeals shall hear the trial
The right to compensation for moral damages inflicted shall
be declared not subject to statutes of limitation, in the
case of the following persons:
i. Surviving spouse, parents and children of persons who were
made to disappear subsequent to arrest by actions of agents
or persons belonging to or associated with offices of the
State, during the period that covers September 11, 1973 to
March 10, 1990, confirmed by the Report of the Truth and Reconciliation
Commission created by Supreme Decree 355 of April 25, 1990.
ii. Persons who were deprived of freedom for political motives,
due to provisions related to State of Siege between September
11, 1973 and March 10, 1990.
Persons who were victims of torture or cruel and inhuman treatment
between September 11, 1973 and March 10, 1990.
Persons prohibited from reentering the country by order of
administrative authority between September 11, 1973 and March
filed by persons who have a judgment pending against the State
of Chile due to the condition of victim involving one of the
circumstances indicated previously, shall be granted priority
in court hearing, under the terms established by clause two
of article 162 of the Code of Civil Procedure.
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